Contributed by Judge Dana Senit Henry (ret.) – After working as a Judicial officer for many years, Judge Henry now serves as a mediator, arbitrator, and private Judge. She has been an advisor and commissioner to city, county and state agencies, corporations and community based organizations.
The simple fact that almost everyone has access to some sort of electronic mail capability causes us to take a lot for granted. Your average user equates email with a simple telephone conversation that ceases to exist once the phone is hung up. The legal profession, however, considers email to be a discoverable document – legal evidence that is on a par with a recorded phone conversation or a signed contract or letter.
Unlike telephone conversation, email lives on in time and while this is not of concern for most email messages that are simple and unimportant, some contain valuable content, oftentimes making the email record itself critically important after the fact. While exotic e-discovery decisions continue to focus the mind, it is important to understand the simple fact that in legal disputes involving damning email correspondence, a case can be lost easily by either party if the veracity of the electronic document’s content and / or time stamp is challenged.